The Zelman decision both creates and makes more
obvious legal and political clouds that will yet hang over voucher
proposals.

The Zelman decision both creates and makes more
obvious legal and political clouds that will yet hang over voucher
proposals.

At the end of June, a sharply divided U.S. Supreme Court ruled in
Zelman v. Simmons-Harris that the First Amendment's
establishment clause did not block an educational voucher plan in
Cleveland that included providing financial assistance to parents to
send their children to private religious schools. ("The Voucher Decision:
Charting the New Landscape Of School Choice," July 10, 2002.) This
opinion has the immediate effect of lifting a constitutional cloud cast
by the U.S. Constitution over voucher systems that involved private
religious schools. And by lifting at least this source of legal
uncertainty, the opinion already is encouraging state and local
officials who support vouchers to go forward with their efforts to get
voucher systems adopted in their states and cities. Perhaps more
significantly, the opinion will also encourage federal elected
officials in the House, the Senate, and the White House to propose and
pass education reform legislation that promotes vouchers.

Given the likely increase in political activity in support of
vouchers in the wake of the Zelman decision, it is important to
address what are likely to be some of the issues, disputes, and
problems that we as a nation will be facing. Certainly, the debate will
continue regarding the wisdom of vouchers as a way of seeking to
improve American education and student learning. But that issue can be
separated from the issues that may arise simply because these voucher
systems may involve private religious schools (even though they
need not be included, as a constitutional matter). Contrary to the
claim by George Washington University Law School professor Jeffrey
Rosen in The New York Times (June 28, 2002) that the court's
decision "refines religious neutrality" and may play a "calming role in
the culture wars," the decision is very likely to increase conflict
over entanglement of church and state.

The dissenters on the court painted an extremely dark picture of the
future. Justice John Paul Stevens said, "Whenever we remove a brick
from the wall that was designed to separate religion and government, we
increase the risk of religious strife and weaken the foundation of our
democracy." Justice David H. Souter noted that "not all taxpaying
Protestant citizens, for example, will be content to underwrite the
teaching of the Roman Catholic Church condemning the death penalty."
"Nor," he added, "will all of America's Muslims acquiesce in paying for
the endorsement of the religious Zionism taught in many religious
Jewish schools." And Justice Stephen G. Breyer wrote, "In a society
composed of many different religious creeds, I fear that this present
departure from the court's earlier understanding risks creating a form
of religiously based conflict potentially harmful to the nation's
social fabric."

These conflicts will not only be fought out in the state legislative
houses and state referendums, but also in the state courts, as
constitutional objections are raised based on state
constitutional provisions.

Even if a state or locality were to get past the objection of one
religious group not wanting to be taxed to support what is, to them,
the offensive religious teaching of another group, other contentious
issues will arise. The Cleveland voucher program given the green light
by the Supreme Court in Zelman operated under a state statute
requiring that participating private schools not "advocate or foster
unlawful behavior or teach hatred of any person or group on the basis
of race, ethnicity, national origin, or religion." It is hard to
imagine that any voucher plan not including a similar provision would
ever be politically acceptable. Yet, unfortunately, this provision
itself raises a host of difficult constitutional and legal issues:

How far, constitutionally, may states go in imposing conditions
on the receipt of voucher money that directly implicate the
free-speech and free- exercise rights of the private religious
school?

Will state enforcement of regulations such as these create an
excessive entanglement between church and state?

Is a law such as the one quoted above consistent with Supreme
Court precedent that bars states from imposing "hate speech"
prohibitions?

Can any such regulation be written in a way that it does not fall
victim to the charge of being unconstitutionally vague?

Would refusal to permit a school to participate in a voucher
scheme survive claims of religious discrimination and violation of
the free-exercise clause?

As Justice Breyer observed: "Any major funding program for primary
religious education will require criteria. And the selection of those
criteria, as well as their enforcement, inevitably pose problems that
are divisive. Efforts to respond to these problems not only will
seriously entangle church and state, but also will promote division
among religious groups, as one group or another fears (often
legitimately) that it will receive unfair treatment at the hands of the
government." This then may mean we are inevitably moving down a road in
which very controversial and divisive schools—those far from the
mainstream— will be participating and must be allowed to
participate in future voucher plans.

Despite the claims of the justices in the majority—especially
Justice Sandra Day O'Connor in her opinion—that the decision in
Zelman does not represent a dramatic break from the past, this
opinion does open the door to a wholly new set of issues that have the
potential for absorbing our political and legal attention for years to
come.

The irony of this development may very well be that contrary to
first reactions, the opinion both creates and makes more obvious legal
and political clouds that will yet hang over voucher proposals. Yes,
the court's opinion may provide an initial impulse toward vouchers, but
that impulse may very well play itself out quickly, as voucher
proponents and opponents begin to focus on the rough road ahead,
especially in the aftermath of the attacks last Sept. 11.

The majority on this court may have aimed to achieve
one goal, but produced an unanticipated consequence.

Put differently, the majority on this court may have aimed to
achieve one goal, but produced an unanticipated consequence. The
general thrust of this decision, and others of this majority, is to
make it more and more possible for government to provide aid to
religious activities. This court majority has made clear that it is a
form of unconstitutional discrimination, for example, for a college not
to fund a student-run religious newspaper, or for a school to exclude a
religious organization from using its facilities. But those very
doctrines, along with the court's prohibition against hate-speech
codes, are going to make it very difficult to exclude even the most
obnoxious and controversial private religious schools from
participating in voucher plans.

Given this constitutional context, it seems unlikely that many
states and localities are going to want to embrace vouchers. And if
they do embrace vouchers, the entanglement issues and divisive
controversies that ensue may come back to haunt them. Voucher advocates
may have won a battle in Zelman, but the Supreme Court might
very well have cost them the war.

Tyll van Geel, an attorney specializing in education law and
policy, is the Earl B. Taylor professor and chair of the educational
leadership program at the University of Rochester, in Rochester, N.Y.
William Lowe Boyd is the Batschelet Chair professor and head of the
graduate programs in educational administration at Pennsylvania State
University, in University Park, Pa. His specialty is education policy
and politics.

Tyll van Geel, an attorney specializing in education law and policy, is
the Earl B. Taylor professor and chair of the educational leadership
program at the University of Rochester, in Rochester, N.Y. William Lowe
Boyd is the Batschelet Chair professor and head of the graduate
programs in educational administration at Pennsylvania State
University, in University Park, Pa. His specialty is education policy
and politics.

Notice: We recently upgraded our comments. (Learn more here.) If you are logged in as a subscriber or registered user and already have a Display Name on edweek.org, you can post comments. If you do not already have a Display Name, please create one here.

Ground Rules for Posting
We encourage lively debate, but please be respectful of others. Profanity and personal attacks are prohibited. By commenting, you are agreeing to abide by our user agreement.
All comments are public.